Get the state out of marriages

A county clerk in Kentucky was in jail for contempt because she refused to issue marriage licenses to same-sex couples. Kim Davis is a woman of four marriages whose defenders say was recently converted to Christianity and is born again. The left lit up social media with attacks against her that they condemn when done by others.

Davis is an elected official, and takes an oath to faithfully execute the nation’s laws. Same-sex marriage is the law of the land, proclaimed such by the U.S. Supreme Court. As an elected official Davis cannot be fired and will not resign. Her official duties under the law are not the same thing as that of the Christian wedding cake baker who has a natural right to contract and associate or not. But sometimes reality has a way of creating a flash point from poor tinder.

Sen. Ted Cruz, R-Texas, says Davis should obey the law only when the president obeys the laws regarding health care and immigration. However, his position overlooks the sheer multiplicity of laws and the absolute impossibility of any government to enforce all the laws on its books. As Frank Zappa once said, “The United States is a nation of laws, poorly written and randomly enforced.”

Presidential candidate Sen. Rand Paul, R-Kentucky, has the more interesting approach. The Libertarian solution would be to let people contract for marriage privately, without the need for a government license. This does not set up a two-tier system, state-sanctioned marriages for Cisgenders—individuals who have a match between the gender they were assigned at birth, their bodies, and their personal identity—and civil unions for LGBTAs. Religious groups could approve, as there is nothing in religious tradition opposed to stateless marriages, and much in favor of the idea. Why do ministers of God preside over weddings “By virtue of the Powers invested in me by the State of …”?

Nevada has a flourishing private wedding industry, that also does not necessarily need a state blessing to join together. Elvis, I am sure, would have approved of private marriage vows.

Although privatization of anything is anathema to some liberals, many liberals agree with libertarians that government should not be involved in marriage. Although liberals and libertarians have supported gay marriage, many see same-sex marriage as the state mandating a general recognition to one reasonable comprehensive doctrine in society and not others.

Many thoughtful liberals believe that public reason should allow for the separate flourishing of different world views without interference from the state. Catholics differ from Episcopalians and both from skeptics in their comprehensive outlooks on life. Government is just not very good at defining morality, and its oversight of marriage has resulted in defining the institution both too strictly in favor of patriarchy and in the last six decades, with no-fault divorce, too permissively for many. Traditional marriage, same-sex marriage, and other arrangements would all have equal standing without state endorsement. Neither patriarchy nor no-fault divorce would be mandated, but partners would voluntarily choose their type of commitment.

Allowing the many individuals with different comprehensive world views in society to create their own contracts would diffuse the Kim Davis scenario because she would not be required to affix the government seal of approval on a comprehensive world view she does not share. Credit Sen. Paul for being the only presidential contender to offer this solution for debate. Can we stop hating or loving on Kim Davis long enough to consider a solution that benefits both her conscience and the rights of same-sex couples who wish to marry?